Germany: The Netzpolitik case – what it means for media freedom law

Gianna Iacino

Germany is facing an intense public debate on the role of investigative journalism and the freedom of the press, after the Federal Attorney General in May 2015 initiated investigations for treason against two journalists Andre Meister and Markus Beckedahl of the German blog "netzpolitik.org" and as a result was sent into retirement by the Minister of Justice.

“Netzpolitik.org” is a blog focused on digital rights and politics. In February and May 2015 two journalists from the blog published two articles regarding the German Federal Office for the Protection of the Constitution, and its plan to implement a new department called “Extended Specialist Support Internet” (Erweiterte Fachunterstützung Internet).

The first article contained an excerpt from the agency’s budget plan for the “Bulk Data Analysis of Internet Content” (Massenauswertung von Internetinhalten) and the other article contained the classified plan for the organisation, as well as the classified personnel plan for the implementation of the new department. When the president of the Federal Office for the Protection of the Constitution Hans-Georg Maaßen learned that classified documents had been published, he registered a criminal complaint against unknown persons, since the journalists’ source was unknown.

In May 2015, following the complaint, the Federal Attorney General Harald Range initiated investigations for treason against the two journalists and their unknown source, and informed the Ministry of Justice about the investigations.

According to § 95 of the German Criminal Law treason is the publication of state secrets, which could endanger Germany’s national security. What constitutes a ‘state secret’ is defined in § 93 of the German Criminal Law: facts, knowledge, revelations and things which have to be kept secret from foreign powers to keep Germany’s security from harm.

So one of the questions to be answered by the investigation was whether the published documents were ‘state secrets’ as defined by the law. Therefore, on 19 June 2015 the Federal Attorney General requested a legal opinion on the matter.

Several weeks later – at the end of July – the Federal Attorney General officially informed the two journalists about the investigation against them. The journalists published the Attorney General’s letter immediately on their blog, which lead to a big public outcry in Germany about an infringement of the freedom of press.

In the public debate that followed, some people argued that the investigations against the journalists for the publication of documents already constituted an infringement of the freedom of press. Meanwhile on the other hand some voices questioned whether bloggers are “real” journalists falling under the protection of the freedom of press.

Two month after the Ministry of Justice was informed about the investigations and only one day after the publication of the Attorney-General’s letter and the public debate that followed, the German Minister for Justice stated publicly his intention to request another legal opinion on the question of whether the published documents were ‘state secrets’.

Furthermore, he declared that he had reached an understanding with the Federal Attorney-General about the withdrawal of his request for a legal opinion.

However, the Federal Attorney-General had a very different perception of his conversation with the Ministry of Justice. After he received the preliminary result of his expert’s opinion classifying the published documents as ‘state secrets’, he gave a press conference to declare that he was being forced by the Ministry to ignore these results and instead base his further actions on the results of the legal opinion requested by the Ministry. He described the Minister’s actions as an “unbearable infringement of the independence of the judiciary”. On the same day the Minister of Justice sent the Federal Attorney General into retirement and a week later the investigations against the journalists were closed.

However, in this context it is noteworthy that the Federal Attorney-General is part of the prosecuting authority and not of the judiciary, and that the German prosecutor is not an independent authority but rather bound by interventions from the Ministry of Justice. Nevertheless, the Federal Attorney-General’s last statement sparked a discussion on the dependence of German law enforcement agencies and the question of whether they ought to be independent.

Military report protected by copyright law

In another case regarding classified papers, the Higher Regional Court in Cologne (Oberlandesgericht Köln) has decided that reports of military positions on the deployments abroad of the German Armed Forces can be protected by copyright law and that their publication can therefore be prevented by the copyright holder (verdict from 12 June 2015, case no. 6 U 5/15).

A German media company published online some leaked classified reports of military positions. The plaintiff – as the author of the reports – sued for an injunction regarding the publication of the documents, based on copyright laws. The defendant argued that a balance of interest was necessary between the copyright of the plaintiff and the rights of freedom of expression and freedom of press of the defendant, because the copyright was used to prevent the publication of classified documents.

The Court decided that the media company had no justification to publish the documents in full and that a publication of excerpts of the documents is sufficient to protect the defendant’s right to freedom of expression and to freedom of press.

The verdict of the Higher Regional Court in Cologne from 12 June 2015 is available here.

Ass. iur. Gianna Iacino, LL.M., is a research assistant at the Institute for European Media Law (EMR), Saarbrücken/Brüssel

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